MISS T C VON GOETZ v ST GEORGE'S HEALTHCARE NHS TRUST [2001] UKEAT 625_99_1810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 625_99_1810

Case No Appeal No. EAT/625/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS T C VON GOETZAPPELLANT

ST GEORGE'S HEALTHCARE NHS TRUSTRESPONDENT

Before

Mr Justice Lindsay

Date 18 October 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR A LYNCH QC Instructed by: Bevan Ashford Solicitors 1 Chancery Lane London WC2A ILE MR JUSTICE LINDSAY (PRESIDENT) Now we turn to the third of Miss Von Goetz's three appeals,

EAT/625/99

B. The representation is the same, namely Mr Lynch QC for St George's, no one attending for Miss Von Goetz, she not attending for the reasons we have traversed in the earlier judgments. The two earlier judgments we have already given will need to be read as if a prologue to this one.

[2]It will be remembered that one of the three members of the Employment Tribunal who heard the case on 21 and 22 January 1998, and on 13, 14 and 15 May 1998 was Mrs A F Martins OBE. She, unfortunately, fell ill; it would seem, very ill. The next hearing, postponed until 28 August, 1998 could not take place because of her absence. It was feared for quite a while that she would never be able to return to complete the case. Miss Von Goetz understood this, and it is quite plain that she did because on 25 November 1998, in a letter of application which we will have to look at parts of in a moment, she began:

"Thank you again for your letters of 11 November and 26 October. As indicated in my note of 11 November and my letter of 17 November, I am sorry to have taken so long to reply. I am also very sorry to hear that Mrs Martins is so unwell that you do not expect that she will be able to return to complete this case."

[3]She then made, in that letter of 25 November 1998, two alternative applications, inviting both of them, in the alternative to one another, to be ruled upon by the Chairman and the one remaining available lay member. Her application begins:

"My application is that the Chairman and remaining Tribunal member make a decision either" and then she specifies an a) and a b). It is crucial to notice that the application was that consideration of Miss Von Goetz's alternative proposals was asked by her to be given by the two remaining members of the Employment Tribunal and by no one else. Questions could have been raised as to the jurisdiction to proceed in the absence of one member, without the consent or even with the consent of all parties, and, if there was a discretion so to proceed, as to whether it was appropriate to do so on the facts of the case. Miss Von Goetz plainly indicated that she was not willing for the conduct of the whole case to rest in the hands only of the two remaining members, because in the same letter she wrote: "

With regret, I am not willing at this stage to agree to the Chairman and remaining Tribunal member determining the case without there being at least a hearing of further oral points as at a) above. If the Chairman or the respondent should wish to make any comments on my observations I would, of course, be willing to consider them."

[4]However, happily, Mrs Martins recovered. The earlier pessimistic prognosis was disproved. On 6 January 1999, the Chairman sent a fax to both parties saying this:

"The Chairman has asked me to follow up our letter of 14 December, to explain that happily Mrs Martins is now recovered sufficiently to complete her duties in this case. The chambers hearing on 27 January will be of the full tribunal. The Chairman has decided that this is the proper course, and the applications made by the Applicant in her letter of 25 November are hereby refused."

The Chairman was, in effect, saying that as now, once again there was a viable three person panel, all matters should be considered by that three person panel. It followed that the request that some parts should be considered only by two had been overtaken by events and had to be refused. Indeed, the question would have arisen of whether, if three were available, it could ever have be right to refer to two only. That, were it possible to do, would totally circumvent the careful machinery of the Employment Tribunals Act which requires that not only a legally qualified Chairman should sit amongst the three, but that the two lay members should be balanced so as to come one from one side of employment, one from the other. A moment's attention to the Chairman's letter of 6 January 1999 would have led to the recovery of Mrs Martins being seen to be the crucial factor that had led to the refusal of the application of 25 November. It is, in fact, the only fact described in the Chairman's letter.

[5]However on 17 February 1999, Miss Von Goetz appealed against the Decision. The letter of 25 November 1998 had asked, after the passage cited above, to the Chairman and remaining member making a decision either:

"a) that they have not heard evidence to proceed with a hearing in chambers based on incomplete written submissions, and that they will allow a further oral hearing with some further evidence and oral submissions on the applicability of the waiver clause or b) that they decide that they are unable or unwilling to make a decision on this preliminary issue and this preliminary issue should be determined when the entire case is heard by the same or another Tribunal so all of the evidence can be heard, findings of fact can be made on the important issues, and conclusions drawn in the usual way, after applying the law."

The Notice of Appeal proceeds on the basis that the fax of 6 January 1999 was a decision refusing a further oral hearing at which oral further evidence and further oral submissions could be made, but it was no such thing. It made only the point that where three members have served and are available to serve, two cannot proceed further.

[6]There was a Chambers hearing on 7 January 1999. As we have seen, there was a decision that Miss Von Goetz had signed away her right not to claim for unfair dismissal. We have already held that there was no error of law in that part of the Tribunal's Decisions. Reverting to this Decision of 6 January 1999, the Tribunal, in ruling that no part of the case could now be heard in Mrs Martins' absence, she having recovered and being able to sit and take her place again, was doing the only thing that it could have done. It is true that no reasons were given by the Chairman in that very short letter, but they were, on a fair reading, obviously adverting to the fact that Mrs Martins, having recovered, had to sit, and that the matter could not proceed in any part to be heard merely by two. We see no error of law whatsoever in that part of the case, and so we dismiss the third appeal, marked B.

[7]Now this leads us to go back to the Health and Safety issue in Appeal A. The only point in remitting the Health and Safety issue would be to enable Miss Von Goetz to show whether she could bring herself within section 100, which would make her dismissal, if she was within section 100, automatically unfair. But we have held that she had already waived all rights as to unfair dismissal and that would include the point in relation to Health and Safety. And so, although we see and have already ruled upon the strength of Miss Von Goetz's argument in the Health and Safety part of the case and are prepared to allow her appeal against the Decision in that part of the case, it is a victory that leads absolutely nowhere, as far as Miss Von Goetz is concerned.

[8]We allow the appeal against the Health and Safety aspect, but make no further Order in her favour. We do not remit the case. We had indicated earlier that provisionally we might remit, but, having come to the decision that we have come to on the waiver issue, we see it to be quite pointless to do so, and accordingly we do not do so.